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Monday, July 04, 2005

Keep your eye on the little ball beneath the shell

If you followed the nuclear scare in May, then you may have heard various Republicans claim that filibusters of judicial nominees were unprecedented. This claim is, of course, simply false. I recall hearing a lot of hairsplitting by those Republicans who bothered to address this fact.

Hairs are once again unsafe in the jockeying over Justice O'Connor's replacement. Consider this, from Sen. Orrin Hatch on Face the Nation Sunday:

Sen. HATCH: No question about it. For the whole history of this country, they've always had an up or down vote. We've never had a leader-led partisan filibuster against any Supreme Court nominee.

See that? Not filibuster. No: Leader-led partisan filibuster.

For goodness sake, who cares who led the filibuster? It was a filibuster!

Of course, this sleight of hand is not an accident. Hatch knows that Democrats will be quick to point out the case of Abe Fortas (go to the 13th page of this document, which shows up as "CRS-11"), who was filibustered in 1968. When Sen. Joe Biden pointed this out on Face the Nation, Sen. Hatch responded with the laughable answer that "It was bipartisan". I won't even bother to talk about how irrelevant that fact is to the arguments Republicans have been making. Instead, here's what Biden said:

Sen. BIDEN: Well, the bottom line was Southern conservatives and conservative Republicans filibustered and killed him. And by the way, I was chairman at the time of Bork and Thomas, and it is true I did allow both to go out without recommendation. I could not--I could have stopped each of them from getting a vote in the full Senate. But it didn't--I didn't let them out because I believed that a filibuster was wrong. I let them out because I believe the Constitution says the Senate--the Senate--must decide whether or not to let a vote occur, not a committee.

Look for Republicans to now try to hold this last part of the quote against Biden. But make a point of understanding what he said: not that filibusters are wrong per se, but that the entire Senate should decide, not just a committee (Bork didn't even get a majority in committee). And note that nothing about a filibuster is prevented by this reasoning.


Blogger strategery4 said...

Not to mention the whole hypocrisy of insisting on up-or-down votes now despite bottling up Clinton's nominees in the Judiciary Committee in the 90's (generally without even a vote there I think, though I could be wrong). As Hedrick Hertzberg has argued persuasively in the New Yorker, judges are probably the best case for the fillibuster since they get lifetime appointments, whereas legislation can be undone much more easily. But there was a good piece (in the Post?) a while back about the Ds and Rs switching sides on the fillibuster debate opportunistically -- I was shocked, shocked!

7/06/2005 1:38 PM  

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